J. R. Mayers Co. v. W. F. Powers Co.

Headnote

Contract — money had and received— agreement permitting subcontractor to collect direct for merchandise furnished under main contract — acceptance by subcontractor as part payment for amount due under contract of a sum in cash and a participating certificate ■— action by contractor to charge subcontractor with amount of certificate as cash received.

Mayers Co., Inc., v. Powers Co., 218 App. Div. 578 , affirmed.

Appeal from a judgment, entered December 24, 1926, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict directed by the court and directing a dismissal of the complaint.

Plaintiff having a contract to furnish calendars to a corporation sublet the contract to defendant under an agreement that plaintiff should collect the moneys due from the corporation and pay the same to defendant up to the amount due to it and retain the balance for its compensation. The agreement also provided that defendant might, if it deemed it necessary, collect direct from the corporation, accounting to plaintiff for any excess collected over the amount due it. The corporation became financially involved and its affairs were taken over by a creditors’ committee with which defendant filed a claim and received in cash a sum of money and a participating certificate in payment of the indebtedness of the corporation to plaintiff. Defendant thereupon paid to plaintiff the excess of the amount received over the amount due to it. Plaintiff brought this action as for money had and received and sought to charge defendant with the amount of the participating certificate as cash received, having refused to accept the certificate although duly tendered to it by the defendant.